Jersey Unreported Judgments

Business dispute - appeal regarding respondent's refusal to vary conditions of a business licence under the control of Housing and Work (Jersey) Law 2012.

[2016]JRC127

Royal Court

(Samedi)

21 July 2016

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Ramsden and Thomas
Between	Karolina Klonowska		Appellant
And	The Chief Minister		Respondent

The Appellant appeared in person

Advocate G. G. P. White and Advocate S. A. Meiklejohn for the Chief Minister.

Advocate V. S. Milner appeared as Amicus Curiae.

judgment

the commissioner:

1.        The appellant appeals against the decision of the respondent to refuse to vary the conditions of a business licence issued under the Control of Housing and Work (Jersey) Law 2012 ("the 2012 Law") to increase the numbers of persons with registered status who may be employed. 

2.        There is no dispute as to the background which we now set out. 

Background

3.        The appellant came to Jersey some three years ago and accordingly out of the four categories of status set out in Article 2(1) of the 2012 Law (Entitled, Licenced, Entitled for Work Only and Registered), she is Registered and she holds an appropriately valid registration card to that effect. 

4.        On 12^th November, 2014, she and a colleague (who also held Registered status) submitted an application for a business licence under Article 26 of the 2012 Law to carry on a patisserie business to be known as "Sweet Heaven" from premises in 15 Bond Street, in respect of which they had taken a three year lease.  We were told that the premises are small, comprising some 25 square metres in all, allowing room for three tables and seating for not more than eleven people. 

5.        The application was refused by officers of the Population Office, under delegated authority from the respondent, pursuant to the respondent's then policy of not granting business licences to persons who are not "Entitled" or "Entitled to Work", unless clearly in the best interests of the community to do so.  The appellant appealed that decision to the respondent who maintained the refusal. 

6.        On 8^th December, 2014, the Population Office received an application by Mr Christopher Barnham, a friend of the appellant, to carry on the same business from the same premises under the same name.  That application was granted, as he held Entitled status.   The licence contained the following condition:-

"The undertaking is not permitted to engage any Registered staff".

7.        On 26^th August, 2015, the Population Office received two applications from Mr Barnham:-

(i)        The first for a change in the ownership of the undertaking as to 60% to Mr Barnham and 40% to the appellant. 

(ii)       An application in the name of Mr Barnham for additional staff, namely the appellant. 

8.        These applications were supported by letters from the appellant and Mr Barnham, the latter stating that his personal situation had changed, causing frequent closures of the business and the loss of customers.  He therefore wished to propose the appellant as a business partner and a person to work in his team. 

9.        The application to change the ownership of the undertaking was granted on 9^th September, 2015, but subject to the same condition as the previous licence, namely that the undertaking was not permitted "to engage any Registered staff".  The application for additional Registered staff was however refused, again because of the respondent's declared policy of not permitting Registered staff to be engaged by an undertaking, unless it was clearly in the best interests of the community to do so.  Quoting from the Population Office's letter of 9^th September, 2015:-

"The restriction on business licences regarding Registered permissions is intended to maintain job opportunities for Entitled/Entitled for Work persons since providing work opportunities to persons whose status is Registered will place, or has the potential to place demands on the Island's limited resources, for example, health, education, housing, transport systems.

In addition, the Policy of the Minister is to grant Registered permissions where it is compellingly demonstrated that this will deliver sizeable economic or social value.  It is noted the business has been unable to recruit Entitled/Entitled for Work persons to perform these particular roles but this is not considered a compelling enough justification to depart from policy.

Furthermore, the application for Registered staff related to an undertaking which provides services that are readily available from other undertakings in the Island and where there is demand for such services, the expectation is that other undertakings will respond to that demand without the need to permit additional Registered staff given the Policy of the States of Jersey to control migration."

10.      Compliance Officers from the Population Office delivered the refusal letter to the business in order to ensure that the appellant was not working there.  When they arrived, she was there and told them that she was purely helping out. 

11.      On 11^th September, 2015, the Population Office received a note from Mr Barnham saying that he had ceased trading on 1^st August, 2015, and had not given anybody permission to work or trade in the business, a statement somewhat at odds with the two applications he had submitted to the Population Office on 26^th August, 2015.  Compliance Officers visited the business again to advise the appellant that she could not operate the business as she did not have permission to work in it and she did not have permission to be the 100% beneficial owner.  

12.      On 7^th October, 2015, the Population Office received an appeal from the appellant in the form of an e-mail, in which she stated that the situation had changed, as she was now the only owner of Sweet Heaven and the only person who could work in it.  Quoting from her email: -

"In request to our telephone conversation I wish to appeal the decision of 9th September 2015 on not granting me permission for working in Sweet Heaven.  I would like to appeal in person.  The situation has been changed and I'm the only owner of the tea room and only person who can work in Sweet Heaven.  I'm baking delicious cakes and serving the customers.  Sweet Heaven is small place but it will be a big loss for Jersey society if I need to close it.  I'm baking everything and all of my cakes are homemade.  With all of my job I'm promoting Jersey.  I'm offering a variety of products which are exceptional.  I have already a regular customers who are happy to come to small family place with good service and only a homemade cakes.  Also a lot of visitors are coming to my place because they can try in Sweet Heaven something special like homemade scones with Jersey Black Butter.  To prepare coffees and teas I'm using only a Classic Herd Jersey milk and all of my customers know about it.  They choosing a best quality with nice and family atmosphere.  I would like to run that small tea room and promote still such a beautiful place like Jersey.  I'm on Jersey already a three years and I would like to say in here for good.  If it could be possible I would like to appeal in person.  I kindly ask for favorable consideration my request."

13.      The Population Office treated her appeal as an application to become the 100% beneficial owner of the undertaking and for permission to work within it as a "Registered member of staff (working principal)".

14.      By this stage, the policy of the respondent in relation to persons with Registered status owning undertakings had changed and is as now set out in Paragraph 27 of the Business Licensing Guidance Notes:-

"27      There is no presumption against people who are not resident or Registered from being the beneficial owners of an undertaking.  However, ownership does not confer any right to work in an undertaking or to obtain a permission to work in that undertaking (and permission may be refused if there are reasonable grounds to believe this to be the case.)"

15.      The applications agenda contained the observation that there appeared to be no opportunities to employ Entitled staff in the business.  The two applications were dealt with in this way:-

(i)        As a consequence of the change in policy as to ownership, the appellant was granted a business licence on 19^th November, 2015, to conduct the undertaking.  Quoting from the licence:-

"On the basis of the information provided to the Population Office, a business licence is hereby granted, pursuant to the control of Housing and Work (Jersey) Law, 2012.

To:-     Miss Karolina Klonowska

This licence is subject to the following conditions:

that the undertaking is carried on in accordance with the information presented for the carrying on of an undertaking for the creation and retail of cakes and associated produce

the undertaking is permitted to engage an unlimited number of Entitled/Entitled for Work staff

the undertaking is not permitted to engage any Licensed staff

the undertaking is not permitted to engage any Registered staff" (original emphasis). 

(ii)       Having granted that licence to the appellant, the respondent refused the application to permit the appellant to work within it as a Registered person.  The letter of explanation dated 9^th November, 2015, refers to the factors which the respondent is required to have particular regard to under Article 26(9) of the 2012 Law and went on to say:-

"Having considered all the circumstances of the application, and in particular for the reasons stated below, there is no justification to grant the Registered permission given the State of Jersey's Policy to control migration.

Providing work opportunities to a person whose status is Registered will place, or has the potential to place demands on the Island's limited resources, for example, health education, housing, transport systems, including a Registered person already resident who may remain on the Island by having access to work.  In addition, the Policy of the Minister is to maintain job opportunities for Entitled/Entitled for Work persons and grant Registered permissions only where it adds the greatest economic or social value.  The business nor the Registered post is deemed as 'high value'.  Furthermore, the application for the Registered permission relates to a business which provides a service that is readily available from other businesses in the Island and where there is demand for such service, the expectation is that other businesses will respond to that demand without the need to permit a Registered permission."

16.      The business has not been operating since 4^th December, 2015, pending the outcome of this appeal. 

Right of Appeal

17.      Article 41 gives a right of appeal to a person aggrieved by a refusal to vary a condition imposed upon the grant of a business licence:-

"On the ground that the decision is unreasonable having regard to all the circumstances of the case."

18.      The test to be applied in considering an appeal under the 2012 Law has not yet been considered by the Court, but as Advocate White submitted, the right to appeal is granted in similar terms to Article 109(1) of the Planning and Building (Jersey) Law 2002 upon which there is a very considerable body of case law guidance.  In Dixon and Another v Minister for Planning and Environment [2012] JRC 237A the Court said:-

"As noted in the Fairview Farm case, the Royal Court cannot escape the responsibility of forming its own view.  This is because the Court is reviewing whether the decision of the minister was unreasonable and in order to conduct that review, it must naturally look at what the Minister should and should not have taken into account in terms of relevant policies and objections.  When conducting that exercise, the Court is likely to form a view in any event on the merits of the application, but it needs to do that so as to be able to weigh up the relative significance of the various factors and thus form a view as to whether the decision of the Minister was or was not reasonable.  The appeal is not a full merits appeal because the Court was to allow, as Bailhache, Bailiff, put it in Token a margin of appreciation to the Committee now the Minister.  Nonetheless given the absence of any other form of appeal against the Minister's decision, the Court should not be too unwilling to intervene where that is appropriate.  This is not an appeal based on Wednesbury unreasonableness, where the application has to show the administrative decision was so unreasonable, no reasonable person could have taken it, such as where the stairs constructed by the decision-taken do not reach the attic bedrooms.

In the second stage of the appeal, considering the decision of the Minister, the Court has regard to whether the process was lawful and fair (see for example Caesar Investments Limited v Planning and Environment Committee [2003] JLR 566 and Ruette Pinel Farm Limited v Minister for Planning and Environment [2012] JRC 008) and then the reasonableness of the Minister's decision.  Comparing that decision with the Court's evaluation will:-

(a)       Sometimes lead to a conclusion that the Minister has acted unreasonably;

(b)       Sometimes show that the Minister has reached a different view from the Court but a view which is nonetheless reasonable;

(c)       Sometimes show that the Court's view and the Minister's view are the same."

19.       It is for the Royal Court to determine whether or not the decision was unreasonable.  The Court of Appeal in The Minister for Planning and Environment v Hobson [2014] JCA 148 said at paragraphs 78 and 79:-

"78     Although we do not support the Deputy Bailiff's reference to 'degrees of wrongness' that view accords with our own.  It seems to us helpful not to speak in terms of mistakenness, wrongfulness, or, separately, of margins of discretion.  In our view the Royal Court would be able to interfere (a) manifestly if a Wednesbury ground is identified but also (b) where the decision is unreasonable, not in the sense of being incapable of reasoned justification, not in the sense of being beyond the range of decisions that a reasonable decision-maker could reach, but in the sense of being beyond the bounds of reasonable justification in the mind of the Royal Court.  An evaluation in the latter manner strikes the balance between respecting the experience of the Minister as planning authority and allowing an aggrieved participant a proper appeal to another expected Island authority, the Jurats, whether alone or with the guidance of the Bailiff.

79       As part of the evaluation, the Royal Court will have looked at matters at a similar level of thoroughness to that carried out by the Planning Committee, doubtless with the much more focused approach which comes with appellate submissions.  But it is not sufficient for the Royal Court to reach a difference view from that of the Minister.  It must also have found the decision to be beyond the bounds of reasonable justification, perhaps because, in the mind of the Royal Court, the decision is the result of flawed logic or is supported only by somewhat threadbare reasoning."

20.      Procedural irregularity was considered in Ferguson v Minister for Planning and Environment [2013] JRC 022 at paragraph 65:-

"The Court will not quash the decision in every case where there has been some procedural irregularity.  The Court is concerned in an administrative appeal with considering whether the proceedings which were followed were, in all the circumstances, in general sufficient and satisfactory.  Put another way it is only when any procedural errors or unfairness are sufficiently serious to render the decision itself unreasonable that the Court will intervene."

21.      In the absence of any argument to the contrary, we agree that we should apply these principles to an appeal under the 2012 Law. 

Discussion

22.      Advocate White submitted, and we agree, that, save for the issue to which we will come in a moment, the decision of the respondent was reasonable. 

23.      The decision was made having regard to the respondent's policy to control migration, the policy to maintain job opportunities for persons having Entitled or Entitled for Work Only status and to grant Registered permissions only where it has the greatest economic or social value.  The appellant's written grounds for appeal were as follows:-

"I have a business license to have a small patisserie 'Sweet Heaven' but I cannot do nothing in there,

My attempts to find and hire right person had no effect,

'Sweet Heaven' at this moment is one person business as it is a small place with family atmosphere, where customers can feel like at home,

It is very important who is running that type of place because it is very special, requires space and the person needs to have a lot of skills like cooking, baking, management and good customer service,

I have already experience as I was running 'Sweet Heaven' for a few months,

In the end of 2015 'Sweet Heaven' started to bring profit,

I am in Jersey from more than three years and I see my future here,

Not much time left to obtain my resident permission,

I have built by myself a working place for me,

I do not ask for any benefits or help from the State Departments,

I am paying my Social Security contributions,

In the future I would like to create a new working places for the people living in Jersey, who are sharing my passion for baking and best quality customer service."

24.      She later expanded upon the economic value of the business in this way:-

"Sweet Heaven is an existing business.  In first and only year of running monthly takings where changing from about 300 pounds on the beginning to 700 pounds in August 2015 to about 2100 pounds in November 2016. Business was growing up and it is giving an optimistic financial forecast for the future.  Jersey economy could has a grant as a tax receipts and Social Security contributions.  People who running own business they taking more care about quality, service and law.  Big companies giving bigger grants but they also closing the shops and a lot of people losing they jobs.  Jersey is a beautiful island which need not only a big names as McDonald or Burger King.  Tourist who are coming to visit our island they looking for places which local products, which has a soul, where they can find something different and spending over there a money.  Small business are the same important as a big companies because they building the economy of Jersey.  As an owner who can work I will have a job, I will be paying tax and Social security contributions.  I hope to employ in future a staff as a waitress and driver who could deliver my products.  Supporting local producer is also a grant for economy because it will keep Jersey farming, I am promoting local products and paying money for local people.  I am spending all my money in here, on Jersey."

25.      In essence she asks the Court to disagree with the respondent's decision and to make her undertaking an exception to the policy.  The fact, however, is that this is a very small undertaking providing cakes (and other foods), a service which is from our own judicial knowledge readily available from many other businesses in the Island.  It will not provide work for those who are Entitled and simply cannot be regarded as adding great economic or social value. 

26.      The Court raised a concern, however, as to the apparent inconsistency of the respondent on the one hand granting the appellant a business licence to carry on this undertaking and on the other hand, imposing a condition that she could not work within it. 

27.      The word "undertaking" is defined in the 2012 Law at Article 23 in this way: -

"23   Meaning of 'undertaking'

(a)       Subject to this Article, 'undertaking' means any -

(a)   trade;

(b)   business; or

(c)   activity involving work or services performed for, or offered to members of the public, including a section of the public,

carried on in Jersey by any person whether or not carried on for profit."

28.      Article 25 then provides:-

"Requirement for undertakings to have a licence

A person shall not carry on an undertaking in Jersey unless there is in force such licence or licences as are appropriate for the operation of that undertaking."

29.      Under Article 26(4):-

"(4)     Upon receipt of an application under paragraph (1) and such further information or documents as the Minister may require for the purpose of determining the application, the Minister may -

(a)       grant a licence with or without an expiry date (subject to Article 28(1)) in the case of a hawker's or non-resident trading licence); or

(b)       refuse to grant a licence."

30.      The appellant therefore has a licence to do something i.e. to carry on a business from these premises in Jersey.  

31.      Under Article 26(5) the respondent must specify the nature of the undertaking, which the respondent has done namely the creation and retail of cakes and associated produce, and may impose conditions in this way:-

"(5)     If the Minister grants a licence he or she shall specify, as a condition of the licence, the nature of the undertaking authorized by the licence and may do either or both of the following -

(a)       impose, with reasons, such other conditions as he or she thinks fit, subject to Article 27(1);

(b)       refuse to impose, with reasons, any condition requested by the applicant."

32.      Article 27(1) is in these terms:-

"27     Specific provisions relating to a business licence

(1)       If the Minister decides to grant a business licence under Article 26(4), the Minister shall specify as a condition of the business licence -

(a)   the maximum number (which may be nil) of individuals with Licensed and Registered status respectively who are permitted to work in or for the undertaking; and

(b)   If any individuals with Licensed status are so permitted, each description of work which may be done by an individual with that status."

33.      The condition imposed on the licence by the respondent pursuant to Article 27(1) and with which we are concerned is in the following terms:-

"The undertaking is not permitted to engage any Registered staff".

The reference to "the undertaking" in this condition is not a reference to some separate legal entity which can or cannot do things.  It is a reference to the appellant carrying on the undertaking.  This condition must therefore be read in this way:-

"The appellant, in carrying on the undertaking, is not permitted to engage any Registered staff."

34.      It is arguable that this condition fails to fulfil the requirements of Article 27(1).  The appellant in carrying on this business cannot engage herself.  Nor can she properly be described as staff.  Staff ordinarily refers to persons who work for an organisation.  It seems to us conceptually impossible for the appellant to employ or engage herself or provide herself with her own services and so this condition may not, on its own, be sufficient to prevent the appellant from working in the business which she has a licence to conduct.  What it says she cannot do is engage any other person with Registered status. 

35.      Advocate Meiklejohn submitted that this condition should be interpreted in the light of the requirements of Article 27(1) to read, adopting the wording of Article 27(1)(a), as follows: -

"Maximum number of individuals with Registered status who are permitted to work in or for the undertaking: nil"

36.      However, irrespective of the arguments over the proper interpretation of this condition, Article 24(1), (2) and (3) provides as follows:-

"24     Requirement to have a registration card for work

(1)       A person, being an individual, shall not start new work in Jersey unless that person has an appropriate valid registration card.

(2)       A person shall not appoint another person to work in or for an undertaking unless the latter has an appropriate valid registration card.

(3)       For the purposes of this Article, an appropriate valid registration card is a registration card recording the person's residential and employment status, the conditions for such status being satisfied by the person on the date the person starts new work."

37.      The appellant therefore cannot start new work in Jersey unless she has an appropriate valid registration card.  Article 24(4) provides that a person starts new work, if there is no contract of employment, where the person works "in or for an undertaking ... in or for which the person has not previously worked".

38.      Under Article 24(11) a person who contravenes Article 24(1) or (2) shall be guilty of an offence and liable to a fine. 

39.      Although it might be argued that, for the purposes of Article 24(1) the need for an appropriate valid registration card simply means that a prospective worker has to ensure that he or she has a registration card which confirms his or her status, and that the number of Licensed and Registered individuals permitted as a condition of the licence is not the worker's concern, paragraph 2 of Article 24 would serve little or no purpose were it simply to permit a person to appoint another person regardless of the status shown on the registration card; the person appointing would simply have to check that there was a valid registration card (whatever the status).  This would call into question the purpose of the words in Article 24(3) "....the conditions of such status being satisfied by the person on the date the person starts new work", if the reality was that it did not matter what status the prospective worker held, provided he or she held a valid registration card.  Advocate Meiklejohn submitted, and we agree, that this would create an absurdity contrary to the intention of the legislature. 

40.      Those intentions can be no better summarised than by reference to the preamble to the 2012 Law, which provides that:-

"Provision is needed for controlling the overall population density of Jersey and the availability of work and housing in Jersey for people with strong connections or associations with Jersey and more generally, in such a way that is in the best interests of the community in Jersey."

The legislature therefore clearly intended for the 2012 Law adequately and efficiently to control the availability of work and as a result Article 24 requires persons, working in or for an undertaking, to have a registration card with the appropriate status consistent with the number and status of individuals who are permitted to work in or for the undertaking. 

41.      Consistent with this, the Business Licensing Guidance Notes say at paragraph 21:-

"A business should check the residential status of any new employee by seeing their registration card, to ensure they are within the maximum numbers as specified on their business licence." 

42.      There was discussion as to whether a licence holder's ability to be personally involved in the business is affected by a condition specified by the Minister as to the status of individuals who are permitted to work in or for the undertaking, and whether, on the other hand, the existence of the licence permits the named licence holder to be so involved, regardless of his or her status. 

43.      Particular reference was made to the case of a sole trader with no employees.  The question was posed as to whether the relevant requirements applied only to employees; and whether, on the basis that a person cannot employ him or herself, such a sole trader was not subject to any working restrictions based on his or her status.  Advocate Meiklejohn submitted that this would create an unjustifiable distinction between on the one hand a person who trades as a sole trader and on the other hand a person who is also the only person working in the business but decides to incorporate the business as a company. 

44.      We agree with Advocate Meiklejohn that this part of the 2012 Law is concerned not with employment but with work.  Article 24(1) and (2) and Article 27(1)(a), for example, all refer to who may work.  Work is defined at Article 1(1) of the 2012 Law as follows:-

" "work" means any of the following -

(a)       work governed by a contract of employment;

(b)       engagement in any trade, business, profession or vocation;

(c)       the holding of an office;

(d)       engagement by a person in any other activity described in Article 23(1)(c)"

45.      The activities that would be undertaken by the appellant in the present case, i.e. the creation and retail of cakes and associated produce, would be covered by (b) of the above definition, i.e. engagement in any trade, business, profession or vocation (business being the most appropriate descriptor) notwithstanding that there may be no contract of employment.  "Engagement" is not defined in the 2012 Law, but it does not require a person to be employed by another.  Each of (a) to (d) alone constitutes work for the purposes of the 2012 Law ("work" means any of the following ..." (emphasis added)), and therefore both "work governed by a contract of employment" and "engagement in any trade, business, profession or vocation" (without a contract of employment) amount in their own right to "work" for the purposes of the 2012 Law (i.e. they are alternative).  

46.      Article 23(5) provides that for the purposes of paragraph (4)(a) of that Article (which provides that in determining whether an undertaking is being carried on in Jersey it is sufficient that the undertaking has a physical presence here) "physical presence" may refer to the physical presence in Jersey of "any person working in or for the undertaking".  Advocate Meiklejohn argued that if it were to be held that a licence holder does not work "in or for the undertaking", then it is at least arguable that a sole trader with no employees has no physical presence in Jersey and is therefore not an undertaking being carried on in Jersey and would not need to be licensed at all, given that Article 25(1) provides that "A person shall not carry on an undertaking in Jersey unless there is in force such licence or licences as are appropriate for the operation of that undertaking".  Advocate Meiklejohn submitted that this would be an absurd result, underlining the point that a licence holder working in or for the undertaking must have the appropriate status. 

47.      The question arose in discussion as to the extent of what the licence holder, who has no permission to work in or for the undertaking by virtue of conditions specified under Article 27(1)(a) of the 2012 Law, may or may not do without contravening the 2012 Law, particularly with regard to other possible legal obligations that person may have; an example given by the Court was compliance with health and safety legislation. 

48.      Article 27(3)(a) of the 2012 Law provides that for the purposes of complying with a condition under paragraph (1) of that Article (which includes a condition as to the maximum number (which may be nil) of individuals with Licensed and Registered status respectively who are permitted to work in or for the undertaking):-

"there shall be disregarded...(a) any individual working in or for an undertaking who is not paid for such work". 

Advocate Meiklejohn pointed out that Article 27(3) does not disregard licence holders or, for example, beneficial owners.  

49.      Advocate Meiklejohn submitted that the effect of Article 27(3)(a) is that a licence holder is not prevented from complying with any other statutory obligations he or she may have if that person is not paid for doing so. The word "paid" is to be construed in accordance with the interpretation provision in respect of "payment" in Article 22(1) as follows:-

"payment" refers to any form of remuneration, including -

(a)       commissions and benefits in kind;

(b)       rents and receipts for the provision of accommodation."

50.      Advocate Meiklejohn argued that the word "including" expands the words that occur before it (i.e. "payment" is not limited to what is set out at (a) and (b)) and that "any form of remuneration" and therefore "payment" and "paid", are sufficiently wide to include a salary (or equivalent thereof) that a sole trader may receive or generate in conducting, as his or her day job, the substantial or day to day running of a small business.  However, he said that "remuneration", "payment" and "paid" would not include, for example, the receipt by a licence holder of profits as the owner of a business and under an agreement whereby the day to day running of the undertaking was conducted by another person.  If such an arrangement is not economically viable then that may be unfortunate, but that is not the responsibility of the Minister. 

51.      Furthermore, Advocate Meiklejohn submitted that complying with such statutory duties may not amount to "work", as defined at Article 1(1) of the 2012 Law, and so are not caught by Articles 27(1)(a) or 24 of that Law.  As noted above, "work can mean engagement in any trade, business, profession or vocation".  This would include the creation and retail of cakes and associated produce, but would not include, he said, compliance with statutory obligations.  

52.      Advocate Meiklejohn therefore concluded that although a licence holder may, regardless of status, do what is necessary to fulfil any statutory obligations that a licence holder must fulfil, and may receive the profits of the business (with the work conducted by another person who is Entitled or Entitled for Work Only), the licence holder may not (if he or she has Registered status and no individuals with Registered status are permitted by a condition specified by the Minister to work in or for the undertaking) conduct the substantial or day to day running of the undertaking whilst receiving the profits.  Advocate Meiklejohn submitted that would amount to remuneration, with the effect that Article 27(3) could not apply, and there would be a breach of a condition constituting a criminal offence. 

53.      In our view, some guidance as to what, at least, an individual licence holder can do in relation to his or her undertaking can be gleaned from Article 23(3)(b), which is in these terms:-

"(3)     For the purposes of this Law the following persons shall be treated as carrying on an undertaking -

(a)       where an undertaking is carried on by a legal person, the legal person; or

(b)      where an undertaking is not carried on by a legal person, the individual or individuals having responsibility for the management, direction and control of the undertakings."

54.      It would follow from this that under the 2012 Law the appellant, as the licence holder, has the responsibility for and can, at least, manage, direct or control the undertaking, which might include doing what would be necessary to fulfil any statutory obligations, for which he or she could, as owner, benefit from the profits of the business, but according to the submissions made by Advocate Meiklejohn he or she cannot otherwise work in the business.  The substantial or day to day running of the business would have to be conducted by another person with Entitled/Entitled for Work status. 

55.      The appellant was fearful, following the compliance visits, that she was unable to even attend the premises, but Advocate Meiklejohn agreed that as the person licensed to conduct the business, she was entitled to attend the premises for the purposes of carrying out her responsibilities, although in his view she would not be able to otherwise work or be engaged in the business. 

56.      We are left with the position that, on the one hand, the respondent has given the appellant, as an individual, a licence to carry on this small business (at least to manage, direct and control it) but, on the other hand, he takes the view, supported by the law officers, that, pursuant to the condition on the licence and the provisions of Article 24, she cannot otherwise work or be engaged in it-to the extent that she does so work then she does so under penalty of a criminal offence.  

57.      The distinction between managing, directing and controlling a small business of this kind and, using Advocate Meiklejohn's wording, the substantial or day to day running of it is not clear, which is unsatisfactory in the context of provisions breaches of which constitute a criminal offence.  We can see that it may be a distinction which it is easier to draw when dealing with larger undertakings or undertakings carried on by a company. 

Amicus Curiae

58.      The Court appointed an amicus curiae, Advocate Milner, to assist it in the light of the appellant representing herself and she filed a detailed written submission in which:-

(i)        She agreed that it was logical to have regard to the case law on planning appeals in considering the test for an appeal under the 2012 Law. 

(ii)       She agreed with Advocate Meiklejohn's submissions on the 2012 Law. 

(iii)      She raised a concern as to the amount of information provided by the respondent, through an affidavit filed by Andrew Bannister, senior manager at the Population Office, and questioned whether it was clear from the information that had been provided which of the statutory factors under Article 26(9) had been taken into account, the basis upon which they were taken into account and how they were applied.  Apart from the agenda for the meeting, no disclosure had been made of the minutes of the meeting, notes of the discussion that took place at that meeting or the information that was presented to it. 

(iv)      She drew our attention to the Discrimination (Jersey) Law 2013 ("the Discrimination Law"), Article 6 of which provides that:-

"a person discriminates against another person ("the subject") if, because of a protected characteristic, the person treats the subject less favourably than the person treats or would treat others".

(v)       Under Schedule 1 of the Discrimination Law race is a protected characteristic and is broadly defined to include nationality and national origins.  The powers exercised by the respondent in this case would be directly discriminatory to the extent that they were taken on the ground of the appellant's race.  She raised a similar point in relation to the Human Rights (Jersey) Law 2000 ("the Human Rights Law") and to Article 14 of the ECHR which guarantees that:-

"the enjoyment of the rights of freedom set forth in this Convention shall be secured without discrimination on any ground."

(vi)      In terms of the issue of consistency, Advocate Milner said this:-

"20      It is not clear why the Appellant was granted a business licence, in her sole name, if it remained the case that she would be unable to work in it and had not yet found anyone else who could work in it?

21       While there was consistency in relation to the question of engagement in the business of a Registered person (this was rejected throughout) the totality of the history seems contradictory and illogical.  It seems strange to have granted the Appellant permission to run this very small business knowing that the reality was that, because she would not be allowed to work in the business, the business could not operate."

(vii)     She raised the question of what was meant by social values and questioned the extent to which the respondent would have taken into account the appellant's skills (including her education/qualifications) and/or her experience, her personal financial commitment and motivation and/or her entrepreneurial spirit. 

59.      The purpose of appointing an amicus was for her to consider the respondent's submissions and advise the Court whether she agreed with them and whether there were any arguments that could be properly advanced in the interests of the appellant.  Advocate Milner has clearly considered the submissions of the respondent very thoroughly, for which we are grateful, but in essence nothing of substance has been drawn to our attention beyond the issue that was raised by the Court. 

60.      There has been no request by the appellant for more disclosure by the respondent and for our part, we see no justification in the Court delaying this matter further by initiating such an exercise on its own behalf.  There is sufficient evidence before us, we feel, to deal with the appeal fairly. 

61.      In terms of the Discrimination Law and the Human Rights Law, Advocate Milner does not suggest that the respondent's actions in this case actually do constitute unlawful racial discrimination.  There is no evidence that unlawful race discrimination played any part in the process and the appellant has not suggested that it might have.  As for the Human Rights Law, as Advocate White points out, in relation to the actions of the respondent Article 14 may only be engaged if a "primary right" under the ECHR is engaged, and that is not the case here.  

62.      In terms of social value, the appellant's application was principally made on economic grounds. She has subsequently addressed the issue of social value before us in these terms:-

"Society Value

When I came on Jersey I was impressed how multicultural place it is and how society is open for new cultures.  I am always cooperating with local people.  I am interested about history and culture places where I am livening.  Most of my customers are local people because I am preparing food which is from around the world but always I am looking for local recipes.  I am open for new knowledge.  I was cooperating with Saint Helier Parish hall to support their charity action.  I am in contact with people who are opening the Polish Culture Centre and we will work together to show beauty of polish tradition.  I was preparing snack for Kids Polish Playgroup.  Person who is educated, has an experience in catering industry, who is open for society and local culture is only a grant for economy and environment of Jersey.  I will stay on Jersey and I want to be a support for Jersey economy."

63.      In our view there is nothing in what she has said to indicate that Sweet Heaven would bring sizeable social value to the community, sufficient to justify an exception to the policy.  

Decision

64.      As to whether the respondent has acted reasonably in granting the appellant a licence to carry on this business but refusing to enable her to work within it, the following points can be made:-

(i)        The licence was granted on the basis of the information provided to the Population Office by the appellant and it was a condition that it be carried on in accordance with that information.  

(ii)       The information provided by the appellant in her e-mail was that she was the only owner of the business "and the only person who can work in" it.  She made it clear that the application was for her to run the business. 

(iii)      The new policy as stated in paragraph 57 of the Business Licensing Guidance Notes states that permission may be refused if there are reasonable grounds to believe that ownership may confer a right to work in the business or to obtain permission to work in it.  Granting the licence did confer upon the appellant the right, as the licence holder, to engage in the business at least to the extent of managing, directing and controlling it. 

(iv)      The way the condition is actually worded would not appear to prevent the appellant from working in the business, but does prevent her from engaging any Registered staff. 

(v)       The appellant remains, however, subject to the provisions of Article 24(1) which prevent her from starting any new work (whether paid or unpaid) without an appropriate valid Registration Card, and this under penalty of criminal sanction.  

65.      The conclusion the Court has arrived at is that the respondent has acted unreasonably in this case.  The application made it clear that it was for the undertaking to be conducted by the appellant as a one person business.  The respondent would have been perfectly justified in our view in refusing to grant her a licence because, in essence, the appellant was applying for a licence to work, which her Registered status would not ordinarily have afforded her.  Instead, the respondent granted her a licence to carry on the undertaking which therefore entitled her, at least, to manage, direct and control the business, whilst at the same time, imposing a condition aimed at preventing her (we think ineffectively) from working within it; a distinction in the context of a one person business that is unworkable and, under the shadow of criminal penalty, unfair. 

66.      Thus, on the one hand the respondent gave the appellant a licence to carry on this small one person business, but on the other hand he purported to impose a condition which prevented her from doing so.  Having granted her a licence to carry on this undertaking, then on the facts of this case, it was unreasonable not to allow her to work in it.   

67.      Article 41(3) provides that:-

"(3)     On hearing the appeal, the Court may -

(a)       confirm, reverse or vary the decision against which the appeal is brought;"

68.      We are therefore going to reverse the refusal to vary the condition of the business licence and vary it so that it reads (subject to the input of counsel):-

"Miss Karolina Klonowska, as the licence holder and as long as she remains the licence holder, is permitted to work in or for the undertaking but, subject to that, no individual with Registered status is permitted to work in or for the undertaking."

Authorities

Control of Housing and Work (Jersey) Law 2012.

Planning and Building (Jersey) Law 2002.

Dixon and Another v Minister for Planning and Environment [2012] JRC 237A.

The Minister for Planning and Environment v Hobson [2014] JCA 148.

Ferguson v Minister for Planning and Environment [2013] JRC 022.

Discrimination (Jersey) Law 2013.

Human Rights (Jersey) Law 2000.